No. 3,397 | W.D. Tenn. | Mar 30, 1897
(after stating the facts). Being dissatisfied with the verdict, which on the proof was not expected by the court, and at the same time seriously averse to interfering with the right of trial by jury merely because the court is disappointed by the verdict, the ground of newly-discovered testimony offers a plausible and somewhat tempting excuse to direct a new trial. If, however, that were the only ground, it would be refused, for the proof offered does not at all justify a new trial for that reason, when we carefully scrutinize it. It may be doubtful if there has been any judicial adjudication of the plaintiff’s insanity, and probably it was only an administrative determination, with judicial sanction, as between hospitals. The affidavits do not disclose the facts with sufficient fullness to exhibit the technical character of the proceeding; but, suppose there were an adjudication as upon a writ de lunático inquirendo, it ought to have been produced at the trial. Due diligence is required in all cases, and testimony is not newly discovered, in the sense of the law of new trials, merely because the party did not know of it at the time. There must be more than
This matter was fully considered in the case of District of Columbia v. Armes, 107 U.S. 519" court="SCOTUS" date_filed="1883-05-18" href="https://app.midpage.ai/document/district-of-columbia-v-armes-90786?utm_source=webapp" opinion_id="90786">107 U. S. 519, 2 Sup. Ct. 840, as it had previously been considered in the case of Reg. v. Hill, 5 Cox, Cr. Cas. 259, commented upon by Mr. Justice Field in his elaborate judgment. Both Mr. Justice Field and Lord Chief Justice Campbell approved the rule of Baron Parke in an unreported case, that “it is for the jury to determine whether the person so called has a sufficient sense of religion in his mind, and sufficient understanding of the nature of an oath, for the jury to decide what amount of credit they will give to his testimony”; and the lord chief justice said that “the proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath? The lunatic may be examined himself, and his state of mind may be dis
On this practice the court would undoubtedly have permitted the plaintiff in this case to go to the jury with her own evidence. Enough was developed by her own conduct at the trial to show that she was then and there of sufficient comprehension to fully understand all that was said to her. Her testimony was intelligently delivered, and if with the artfulness that sometimes belongs to insane persons it was for the jury to determine. As to the obligations of an oath, it was manifest from the developments of the proof, and particularly from the proof of the clergymen who were examined in this case, that she was given to a rather high state of religious feeling; and there can be no doubt from what did occur at this trial that she would have stood the test of any examination as to her sense of the obligation of an oath. So, at last, it is only a technical situation that a preliminary examination upon this subject did not occur; and the court, being now satisfied from what did occur that on a preliminary examination her testimony would have been admitted, and the question left to the jury as to the effect of her alleged insanity upon her credibility as a witness, will not now grant a new trial merely because there was no such preliminary examination. On the whole, this ground for a new trial should be overruled. Neither technically nor on its merits is it sufficient to furnish any just foundation for a new trial.
Also this application for a new trial would be refused if it rested alone upon the objections that have been taken to the sufficiency of the proof to establish the fact that excessive force was used by the agent of the defendant company in recovering possession of the parrot and its cage. I use the word “excessive” advisedly and discriminatingly. It was and is almost incomprehensible to me how the jury could have reached the conclusion that there was any “excessive” force used on this occasion. It would seem that the almost perfect condition of the frail structure of lath and small nails constituting the cage would prevail as a physical circumstance over the mere opinions of witnesses as to the extent of the force used; for it looks as if it would be impossible for any really formidable struggle to have taken place between two persons for the unhanding of such a frail structure-without tearing it to pieces. In the light of that fact, the court has been wholly at a loss to conjecture upon what theory the jury could have proceeded to find excessive force, unless it may be that, believing that the plaintiff had been as seriously injured as she claims to have been, they concluded that there could not have been such an injury without a formidable struggle, which the cage withstood notwithstanding its frailty. It must be remembered here that there was no concussion or blow of any kind ensuing from the struggle, and that all of the witnesses describe it as merely a grappling between the two for the possession of the cage, with such physical “wrenching” as the plaintiff claims by her proof took place. It might be reasonable to infer that a “wrench” that would strain the vertebrse of the plaintiff’s
It may be mentioned here, however, that counsel for the plaintiff in the argument upon this motion has suggested an altogether probable and satisfactory basis for the verdict of the jury in respect of this question of the force used by the agent of the company in retaining possession of the property. Counsel substitutes the word “unnecessary” for “excessive” force, and thinks the jury proceeded upon what he claims to be an entirely proper and justifiable theory that with a woman, weak and frail as the plaintiff was, no force at all was required to keep possession of the bird and cage; that the agent, instead of taking the cage from her, could have prevented her departing with it by merely obstructing her exit from the room; and so he says that any force was unnecessary, and therefore excessive. It is not at all improbable that this is the true solution of the verdict of the jury. Whatever may be said of its soundness as a legal proposition, it was not the theory of the instructions to the jury upon this subject of excessive force. The court was then, and is now, of the opinion that the agent was not under any legal obligation to resort to the course suggested by this argument of counsel. Undoubtedly, as it turned out, it would have been better if the agent had adopted that plan, and unless a suit had been then brought for false imprisonment probably his company would have escaped any claim for damages. One who is a trespasser and a wrongdoer, undertaking to carry away the property of another, has no just cause to complain if physical force is used to prevent the asportation of the property; and the court is of the opinion that the agent had a right to lay hold of the cage, and take it from the plaintiff’s possession while she was undertaking to carry it away from the room, and the only liability for which the company can be held is any violence of physical force or battery, and the theory of the charge to the jury was that they must find in that which the agent did some unnecessary violence of physical action; and, if the jury were misled into adopting the theory suggested by counsel, it was the fault of the court not to have had it more plainly understood what the legal right of the defendant was in that behalf; and this, of itself, might furnish a sufficient ground for a new trial, and possibly it ought to be granted for that reason. But the court prefers to adhere to its original line of action in the trial of this case, and to rest its judgment upon the real objection there is to this verdict.
Notwithstanding there have been two verdicts in this case in favor of the plaintiff, the court is constrainedly of the opinion that the jury may be entirely wrong in its finding that there has been any substantial injury to the plaintiff by reason of that which oc
It may be asked, as it was suggested in argument, why the court did not direct a verdict as requested by the defendant company, if it takes the view that the proof was not sufficient to sustain the verdict. Unquestionably this case is not one for the direction of a verdict, but, on the contrary,- is distinctly a case which ought to be submitted to a jury. But it does not follow, because it ought to be submitted to a jury, that the court should let the verdict stand, nor even two verdicts, possibly not three or more, if at each succeeding trial the proof should be precisely the same and no stronger for the plaintiff at the last than the first trial. The case of Railway Co. v. Lowery, 20 C. C. A. 596, 74 F. 463" court="6th Cir." date_filed="1896-05-12" href="https://app.midpage.ai/document/mt-adams--e-p-inclined-ry-co-v-lowery-8855659?utm_source=webapp" opinion_id="8855659">74 Fed. 463, makes, and was intended to make, this distinction entirely clear, and there could be no more pertinent illustration of the distinction itself than that furnished by the case we have in hand. Here, as will directly appear, there was not only the testimony of the plaintiff herself as to the extent of her injuries, but it was supported by that of the expert physicians introduced in her behalf. It would be a plain usurpation on the part of the court to direct a verdict on such a state of the proof, and yet the duty of the trial judge to scrutinize the proof, and determine, on an application for a new trial, whether the verdict should stand, is just as plain. It is as much a part of the right of trial -by jury to have the court exercise this function of inspecting the verdict after it is rendered as it is to have the 12 men hear the testimony and try the fact. The time might come when it would be the duty of the court to yield even to the perversities of the jury, and not any longer interfere with their verdict, but two verdicts are not ordinarily conclusive of that duty. Three verdicts have sometimes been thought sufficient to invoke the duty of noninterference, and by statute in some of the states that has been made the rule of judgment.
The most important cases on this subject of directing a verdict are gathered in the very satisfactory opinion of Mr. Circuit Judge Lurton in the case last cited, and a careful perusal of that which he says will be convincing on this point. “Neither is it a proper standard,” says that learned judge, “to settle for a peremptory instruction that the court, after hearing the evidence in the case, would, upon a motion for a new trial, set aside the verdict. The court may, and often should, set aside the -verdict when clearly against the weight of the evidence, where it would not be justified in directing a verdict. Neither do we understand this view to be
My experience in the trial of this class of cases has grown to be quite a large one, through a somewhat long judicial service, and properly I may say that I quite thoroughly agree with some of the views expressed in a recent article in the North American Review of February, 1897, as to the alarming increase of favoritism in the jury box towards the plaintiff in litigation of this character. It is not necessary to analyze or descant upon the causes that may •exist for this favoritism. That it does exist is beyond question, and the preservation of the right of trial by jury itself is, in my judgment, involved in the duty of the courts to protect the litigants and the jury against the indulgence of an overweening partiality for verdicts giving damages for personal injuries that are not clearly and satisfactorily established by the proof. The trial judge is apt, with the approval of revising courts, to resort to the usurpation of the functions of the jury, and direct a verdict when he should not, thereby depriving the citizen of his right to trial by jury, in order to escape the consequences of such favoritism in the jury box. Hence he should freely exercise the only power there is or can be under our constitutional guaranties to set aside the verdict in this class of cases, whenever he has reason to believe that
At first, within my judicial experience large verdicts for damages in personal injury cases were confined to those instances where the severity of the injury was manifest on the body itself; to cases where cripples had been made and maiming had been done. More recently there has been a very noticeable increase of cases where apparently there has been the slightest physical disturbance, and the facts disclosed only the slightest causes of injury, and yet there is set up the largest claim for damages, because of some alleged occult injury to the spinal cord or the brain or some other invisible organs or tissues of the body; it being claimed that there has been left as a permanent affliction some “traumatic neurosis,” as in this case. I do not know whether it is authentic or not, but I have lately seen somewhere in my reading the statement of a case where a woman had recovered large damages against a railroad company because of a physical injury that made her barren, in the opinion of the expert doctors who were examined as witnesses in her behalf, but, pending long-delayed proceedings, she had given birth to children before the appeal was heard. There are many cases told of crutches thrown away after verdict. This class of personal injury litigation requires at the hands of the court and jury, unquestionably, far more vigilance of treatment than those cases where the injury is obvious. They afford an almost unlimited scope for the exhibition of unreliable, if not false, testimony. They depend largely for success upon the bare opinions of medieal men employed as expert witnesses by the party offering them.
The courts and juridical writers have often commented upon the unsatisfactory character of all expert testimony, and many sugges
I do not mean to impute to the medical profession any complaisance of professional opinion that does not equally belong to the legal profession and all other professional or quasi professional experts; but with all men, in all employments, benevolence and sympathy with those who seek a mere opinion upon subjects of expert knowledge dominate the judgment that is given. If a lawyer comes to a brother attorney, and wishes him to estimate the value of his professional services, he is almost certain to put the estimate at the most that is possible to meet the views of him who applies, because it is a kind of courtesy of benevolence to think as well of one's services as that one does himself. If a client comes to a lawyer and wishes professional advice, the lawyer is very apt to shape his opinion in accordance with the wishes of the applicant, and not only that, but he is willing to go into the courts to vindicate that opinion, and will vigorously adhere to it after it has been decided against him through all the courts, and by that of last resort. It is a human tendency, and is the weakness of all expert testimony. Doctors of medicine are as much liable to follow this tendency as other experts, if not more, and it is no imputation upon their fairness and their honesty and skill to challenge and scrutinize any opinions that they offer on either side of a controversy like this.
When one is called upon to testify in court as to his observation of facts that are within his perceptive faculties, be he expert or
Being convinced, and having determined as matter of law, to which conclusion I still adhere, that the defendant’s agent had a right to lay his hands upon the cage, and forbid the plaintiff to depart with it, and that he might lawfully, with such force as was necessary, take it from her possession when she had shown her perverse determination to carry it away either by her own hands or by those of her servant, I cannot, in considering the question of excessive violence as submitted to the jury, heed the facts and circumstances in the proof in relation to any supposed duty of the defendant’s agent to resort to other effective means of detaining the plaintiff in a kind of imprisonment until she should be willing to yield. It is not a question of his reasonable choice of the means of defending his rightful possession, but a question of the reasonable use of those means which he lawfully adopted. In this view I do not see the justification of the verdict by the proof as we have it here. But, as before remarked, if this were all, I should most assuredly hesitate to disturb the verdict of the jury. Still, I think the apparent ease with which the jury reached the conclusion that
As to the medical testimony about the existence of the injury itself, and it being likely to result from comparatively so slight a physical force, even taking as true the plaintiff’s own story, and I am not at all convinced that it is reasonable to support the verdict upon it. There was medical testimony against that theory, and particularly that of the doctor who attended her about the time of this occurrence at the express office and afterwards, and whose testimony is so much belittled in argument because he was only a “country” or “blue-mass” doctor. Whatever defects of technical education there may be about this physician, he testified to facts and circumstances in relation to the plaintiff’s health history and her conduct on this occasion that do not support the theory that she had been seriously injured at the time, but rather tend to show that the idea of great injury was wholly an afterthought on her part. Every medical man who spoke in favor of the injury being caused by the struggle over the bird and cage, that did not injure the cage at all or only slightly, spoke with evident hesitation to attribute so formidable an injury to so slight an origin, and they mostly spoke from the somewhat exaggerated description of ex